Godber and Comcare
[2003] AATA 1154
•18 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1154
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/434, Q2003/183
GENERAL ADMINISTRATIVE DIVISION )
Re DAVID GODBER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date18 November 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. .................(Sgd).........................
R G Kenny
Member
CATCHWORDS
WORKER’S COMPENSATION – whether continuing incapacity – relationship between initial injury and subsequent disease - permanent impairment
Compensation (Commonwealth Government Employees) Act 1971 ss 37, 39, 45
Safety, Rehabilitation and Compensation Act 1988 ss 4, 6, 14, 19, 24
REASONS FOR DECISION
18 November 2003 Mr R G Kenny, Member Background
1. David Godber (the applicant), who was born on 23 March 1950, injured his back on 9 February 1985 when he was employed by the Snowy Mountains Hydro-Electric Authority (the Authority). Liability was accepted by the Commission, established under the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) and which was the forerunner to Comcare (the respondent), established under the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act). He received reimbursement of various medical and travel expenses under section 37 of the 1971 Act and, until he returned to work, periodic incapacity payments in accordance with section 45 of the 1971 Act. On 29 March 2000, the applicant sought to re-open his claim in relation to periodic incapacity payments but, on 21 December 2000, the respondent determined that it was not liable for ongoing incapacity payments in accordance with section 19 of the 1988 Act and, on 27 March 2001, that decision was affirmed. The applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 21 May 2001.
2. On 2 July 2002, the applicant lodged a further claim with the respondent. This was in relation to permanent impairment for his back condition. This claim was rejected by the respondent on 10 October 2002 and that decision was affirmed on 20 February 2003. In making that decision, the respondent determined that the applicant’s condition had become permanent prior to the commencement of the 1998 Act and, in reliance of the transitional provisions of the 1998 Act, applied the terms of section 39 of the 1971 Act. The respondent also found that there was no new injury after the commencement of the 1998 Act and, that, therefore, compensation was not payable for permanent impairment under sections 24 or 27 of the 1988 Act. The applicant sought review of the decision by the Tribunal on 3 March 2003.
Hearing
3. At the hearing, the applicant was represented by Mr D O’Gorman of Counsel and the respondent was represented by Mr D O’Donovan of Counsel.
4. The following material was taken into evidence:
§Exhibit 1 documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) in relation to application Q2001/434 (T documents T1-T123);
§Exhibit 2 documents prepared in accordance with section 37 of the AAT Act in relation to application Q2003/183 (T documents T1-T26);
§Exhibit 3 a statement, dated 1 September 2002, by the applicant;
§Exhibit 4 a medical report , dated 19 May 2003, by Dr David Van Der Walt, Orthopaedic Surgeon;
§Exhibit 5 a letter, dated 12 August 1986, by the applicant;
§Exhibit 6 a letter (with annexures), dated 9 May 1988, by the applicant;
§Exhibit 7 a letter, dated 9 January 1989, by Mr H M Talbot;
§Exhibit 8 medical reports provided by Dr Lloyd Sussens by way of summons under Regulation 15.
Issues and Legislation
5. The issues for the Tribunal to determine are whether the respondent is liable to continue to pay compensation to the applicant for incapacity for impairment in relation to the back condition that he suffered in 1985 and whether the respondent is liable to pay compensation to the applicant for permanent impairment resulting form that condition. Relevant to the determination of those matters are the following provisions of the 1988 Act:
“4 - Interpretation
(1) In this Act, unless the contrary intention appears: …
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's
…
6 - Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)…; or
(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment…;
…
14 - Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
…
19 - Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee's normal weekly earnings.
24 - Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
…
The Applicant’s Evidence
6. The applicant completed statements in relation to his claims on 9 February 2001, 14 November 2001 and 1 September 2002. There, he set out his work history following his injury. He said that he resumed work with the Authority on 28 May 1985 but resigned on 27 August 1986. He said that he did not give reasons for leaving the Authority and was not required to do so. He said that he had been employed as a power station fitter and that his work required him to be in confined spaces, in pipes and turbines and riding in four wheel drive vehicles over rough terrain which he was not able to deal with this because of his back problems.
7. The applicant said that he then gained employment with the National Parks and Wild Life Service (NPWS) in New South Wales at Tumut as a mechanic where he believed that he would be working on vehicles that were generally in good repair and the servicing of which would be of a routine nature. He said that he was required, however, to work on four wheel drive vehicles and to drive on rough bush tracks. He said that he was also required to become involved in fighting bush fires during summer and that this included being winched to the ground from a helicopter. He said that all of these activities caused him to have back pain and he left that job in March 1989.
8. The applicant said that, in 1988, he had applied for two separate positions as a power station fitter with the Authority at Talbingo and at Khancoban and, while he was successful with the second of these, he was unable to take it up because he failed a medical examination. He said that he was then employed in the spare parts section of a motor dealership in Tumut on a full-time basis for about six months and then part-time for about twelve months after that. He said this involved a lot of office work and that sitting for long periods brought on pain in his tail bone, lower back and left leg and he also felt pins and needles in the left foot. He said that his wife opened up a nursery at Tumut and that he assisted her by carrying out whatever duties his health would permit him to do during the five years that she owned it until 1994. In relation to his assistance with his wife’s nursery, he said in his statement of 1 September 2002:
“Some of my duties would be to take pot plants etc purchased by customers to their cars.
I could carry the small pot plants satisfactorily but heavier ones which I would have handled easily, without pain, prior to my accident I could not handle without causing pain and I used a trolley to deliver them to the customers vehicles.
Anything that required handling, items sold or lifting generally around the nursery other than small items, I had to use a trolley or my wife was required to carry them.
Occasionally a customer would carry out purchases him/herself.
Due to my disability, the nursery purchased a bobcat to handle items for sale such as woodchip and pinebark.
Otherwise it had to be shovelled into a customer’s vehicle and I was unable to do that without pain and my wife was called upon to do so.”
9. The applicant described the nursery business as being reasonably successful and said his wife sold it for various reasons including the fact that the lease expired. He said that another reason for selling it was that the cold weather in Tumut was affecting his back and they decided to move to the warmer climate in Queensland. He also made reference to a soft-drink delivery run which he had at that time. He said that it occupied him for two to three days per week for about an hour and a half per day, that the deliveries would average about 6 to 8 bottles of soft-drink, the weight of which was 9 to 10kg, and that that he was able to carry out this work but that he felt pain in his back at the time and afterwards.
10. The applicant said that he and his wife moved to Queensland where he was unemployed for a period before obtaining a position as a farm mechanic where he worked for two days per week carrying out maintenance work on farm equipment and vehicles. He said he kept that job for about four and a half years until October 2000 but could not continue due to the pain in his back. He said that he would work for two days and then take the rest of the week to recover from the pain in his back before he could return for the next period of work.
11. The applicant said that, in Queensland, he and his wife purchased a property at Buxton where they tried small-crop farming. He said in his statement of 1 September 2002:
“I did the tractor work but found the rough ground caused pain and my wife endeavoured to do the balance of the work on the small crops.
I was able to do some packing as this involved only one and half hours approx. per day.
I did attempt picking the crops but found, because of the difficulty and pain, I would pick one row while my wife picked five.
I found with that extra exertion I could not do anything the next day and had to rest.
I also found that I could lift one or two ten kilo cartons but could not continue doing so without my back becoming too sore.
We finally found that we could not carry on and could not afford to employ labour and ceased growing.
I was not able to contribute greatly to the small crops venture.
The other work I have been engaged in was for the farmer Bill Brown of Childers district.
I was employed as his farm mechanic.
My work involved maintaining tractors, farm machinery, motor vehicles, motor cycles and small engines.
This was carried out for two to three days per week as required.
Mr Brown was the owner of a forklift and it was used for lifting at all times possible.
My real problem in this work was the bending over say a mudguard of a vehicle and such activities.
After a few minutes my back would become sorer.
Towards the end of my employment with him, I found often that I was required to work about six hours to do a three hour job and therefore charged for only three hours.
I left his employ, after about four and a half years, due to my inability to do the work properly.
Due to my difficulties I did not want to get to the stage where he may be forced to dispense with my services and I left as I felt I could not do justice to the work.”
12. The applicant said that, after he stopped working as a farm mechanic, he was engaged on Saturday mornings for about four hours demonstrating wood working equipment for hardware firms. He said that he had to set up the demonstration and pack it up afterwards and that this involved lifting weights of up to 10kg and that his wife assisted him. He said that his wife had found seasonal work packing small crops and he that he now assists around the house as much as he can. He said that he endeavoured to sweep and to mop floors, to mow the lawn and do general household duties and that he uses a ride on lawnmower but needs more than one session to complete the task and may also get assistance from his wife.
13. The applicant made reference to the house that they built on their land at Buxton. He said in his statement of 1 September 2002:
“My wife and I have been building for the past six years or so our home at Buxton as ‘owner builders’.
We have done the bulk of the work ourselves, assisted by friends and the house is far from finished at this stage.
We retained the Bobcat from the Tumut business and it was used extensively for the purpose of lifting in doing the building.
The bulk of the manual work has been done by my wife and friends.
It is a steel framed house and my main contribution was the welding which was generally carried out on trestles to save bending.
I assisted generally as much as I could my contribution being limited each time to an hour or two.”
14. The applicant said that he has problems in lifting his grandchildren because of his back. He also said that he does the family supermarket shopping when his wife is working and that this gives him problems with his back when pushing the trolley around the store. He said that he has “good” and “bad” days but he felt that his back has not improved since the accident in 1985 and that, indeed, it has gradually worsened. He said that he wears a back support and has done so virtually since his accident.
15. In his statement of 1 September 2002, the applicant said that, about twelve months after he was injured, he had been to see orthopaedic surgeon, Dr Peter Dewey, of Wagga Wagga and was told by him that it would take six or seven years for his back to get better and that he should just put up with it.
16. In cross-examination, the applicant identified a letter, dated 12 August 1986, of resignation from the Authority which made no reference to his back condition. He agreed that he had been a member of the Occupational Safety Committee at the Authority and that he knew that he was entitled to work in a safe environment. He said that he had requested that the Authority provide him with alternative work but that he had made no formal complaints about his work conditions. He said that issues relevant to occupational safety had only begun to be a consideration and was getting negative feedback from employers.
17. In relation to his work with the NPWS, the applicant denied that he had been involved in maintenance of hydro-electric generating equipment or heavy plant. He identified a letter which had been written by Peter Ingram, a Chief Ranger with the NPWS, which he had annexed to an application he had made for work with the Authority on 9 May 1988. He agreed that the letter made reference to maintenance by him of electricity generating equipment and heavy plant but he denied that he had been involved in this.
18. The applicant was referred to his 1988 job application with the Authority for the position of a fitter and turner at Talbingo. He said that he had expected that the work would involve him in the use of a lathe but not the same kind of work that he had been doing previously with the Authority. He said he did not feel well enough to do the job but applied anyway because his intention was that, once employed, he may have been able to undergo some rehabilitation.. Subsequently in his evidence, he said that he applied to see if he was able to do the job and thought that, if he was not able to do so, he would be able to get rehabilitation. He said that he did not have an interview in respect of that job application but was subsequently given a job as a fitter and turner by the Authority at Khancoban though he was required to undergo a medical examination. Again, he said that, when he applied for the Khancoban job, he believed that he would be involved in lathe work and was not sure whether he would be able to do it but wanted to try himself out. He was shown a medical report that was completed by his general practitioner, Dr Grimes, in relation to the1988 pre-employment medical examination. He identified it as being the report which, ultimately, resulted in his not getting the job at Khancoban. He agreed that the report said that he received a back injury in 1985 but that he was asymptomatic at the time except after a long drive. He agreed the report stated he was “fit at present” and made reference to a previous back injury which would possibly make him more prone to further trouble.
19. The applicant said that he had worked in the Holden dealership in Tumut as the spare parts manager for six months on a full time basis where he was involved in office work only. He said this continued until October 1989 when his wife opened up a nursery and, at that time, he moved to part time work. He said that his employer wanted him to change to part-time work and that he also began to assist in the nursery from that time onwards; but he denied that this was the real reason for his leaving his full-time position. He said his back had been getting increasingly worse since 1985 and that, even without assisting in the nursery, he would have had to change his status to that of part-time.
20. In relation to his work in the nursery, the applicant said that he could lift things but would experience pain from doing it and he tried to avoid the heavy things. He said he used a trolley to move things around. He agreed he went to see Dr Ian Collins in 1994 in relation to a common law claim involving the contractor who had employed him previously and said that these proceedings did not continue because they had not been able to identify the contractor involved. He said he had read the report of Dr Collins and that it reflected what he had told Dr Collins. He agreed with the comments of Dr Collins that he could lift heavy things but said this was only with pain. The applicant said he was able to lift 30 litre bags of compost but could not recall making the reference about heavy lifting to Dr Collins. He agreed that a 40 kilogram bag would be heavy and that he could lift it, but only with pain.
21. The applicant said he would work for one or two days in the nursery and that he also had to manage his soft-drink run at the same time. He agreed that he had owned a bobcat when the nursery was operating and said that it was mainly used for shovelling or shifting loads into trailers for customers. He said he still owned the bobcat and had had it for fourteen years and it had only done something like 700 hours. He was referred to a comment by Dr Collins in his report that he sometimes used the bobcat for five hours a day without any problems at all but he said he could not remember telling Dr Collins this. He also said he was not sure whether he had driven the bobcat for five hours in a day and said that, if he did, it would not have been in a single shift but rather in lots of short loading operations which took five to ten minutes to complete. He said there were possibly days when he accumulated a total of five hours but he could not recall precisely. He also said that he would not have been able to do it without problems with his back.
22. It was put to the applicant that he used the bobcat for purposes other than those associated with the nursery and he agreed that, at times, he used it at his home and also on occasions performed work for others by levelling out driveways and spreading gravel on driveways. He said he thought this had happened on only one or two occasions. The applicant agreed that he had not made reference to this external work in his statement.
23. In relation to the soft-drink run, the applicant agreed it involved two activities which caused him problems, namely driving a vehicle and lifting weights. He said he had to make a living and that there was no alternative work available to him. He said that he eventually sold the soft-drink business because of his back. He agreed this had happened just before he and his wife moved to Queensland but denied that he sold the run so that they would be able to travel to Queensland. He said that, after the sale had been effected, he was required to continue working the run for a period of a few weeks because the new owner had gone on a cruise and he agreed to do it during that period. He said no one else could have done the job because only he knew the customers and their requirements.
24. The applicant was referred to a medical report by his Queensland general practitioner, Dr Sussens, and to an entry dated 5 December 1995 which refers to the applicant having pain in his shoulder about six weeks previously carrying soft-drinks and to the further entry that he had to keep going for another six weeks. The applicant said he could not recall any problem with his shoulder and again said that it was his back which caused him to get rid of the soft-drink run.
25. The applicant agreed he had moved to Queensland to live on an 18 acre property but said that only about a half an acre was committed to the growing of crops as the rest had not been cleared. He agreed he had driven a tractor at times and was involved in the planting of zucchinis but that he did not involve himself in harvesting the crop because of his back. He said the arrangement was that his wife would do that work. The applicant also agreed that they had moved to the property with the intention of building a house as owner-builders. He said that he did not really feel well enough to do that and did not do any of the heavy work, carrying out tasks such as welding and assembly work with the assistance of up to six friends who helped him put steel frames together and to install the roof.
26. The applicant was referred to a further entry in Dr Sussans’ reports dated 29 February 2000 which relates to a crush injury to his right foot which had been hit by a large bit of metal weighing five to six kilograms. The applicant said he could not recall that injury. He agreed that Dr Sussans had been his general practitioner from 1995 to 2001 and it was put to him that he had consulted Dr Sussans forty times in the year 2000. The applicant said he could not recall how many times he had seen him.
27. The applicant agreed that he had seen Dr Sussans in relation to migraine which he said was serious and which normally occurred at night and could recur on a nightly basis for up to five weeks. He said that they were not so bad during the day. He also agreed that he was treated by Dr Sussans for hypogonadism which had the effect of reducing his sexual interest. He was referred to his statement of 31 July 2001 where he said that his back problem had led to a steady decline in his ability sexually and that this had put an unnecessary strain on his marriage. The applicant said that his hypogonadism makes him less interested in sexual matters but that, if he does engage in it, his back causes him difficulty in performing it. He agreed that, in the years that he saw Dr Sussans, he had not at any stage made any complaint about his back problem except for one occasion in relation to a Comcare claim. The applicant said that this was because of what he had been told by Dr Dewey in 1985 i.e. that it would take a long time, perhaps six or seven years, before his back would get better. For that reason he did not think there was anything that could be done about his back and so he simply put up with it during that period.
28. The applicant was referred to a letter written by Dr Sussans on 5 February 2000 to Dr J Knoble where he described the applicant as being “well except for persistent migraines”. However, he said this was not a correct description and that Dr Sussans had not been aware of his back problem. The applicant was referred to his consultation with Dr Martin and said that, before seeing Dr Martin, he had taken pain killers but had not mentioned this to Dr Martin. He denied that he had exaggerated his symptoms when being examined by Dr Martin.
29. In re-examination, the applicant said that with the NPWS he had been involved with servicing motor vehicles and small hydro-electric plants about the size of a football. He said that he could recall being sent to Dr Brooks in Canberra by his general practitioner in relation to his back and that he had been injected with something perhaps a steroid or cortisone.
Evidence of Karen Godber
30. The applicant’s wife, Karen Godber, told the Tribunal that the applicant had been responsible, when the nursery was operating, for delivering goods to people’s cars on a trolley, serving customers, watering plants and also using the bobcat for loading customers’ trailers. She said that he did not use the bobcat except at the nursery. She agreed that, on some days, he would work on the bobcat for a total of five hours comprising many small jobs of perhaps ten to thirty minutes each.
31. Mrs Godber confirmed that, whilst at the nursery, the applicant also operated a soft-drink run for 1½ to 2 hours per day which he continued until they left for Queensland. She recalled that he had hurt his shoulder but was uncertain as to when this happened but agreed that it was shortly before they moved to Queensland. Mrs Godber agreed that the selling of the applicant’s soft-drink run was partly related to the decision to move to Queensland but that it was also because of his back condition.
32. In relation to the 18 acre property in Queensland, she agreed that they intended to plant crops there and that this would be the applicant’s job. She said that he was not involved in heavy lifting and would use the bobcat for that purpose, that he did some welding but not for long periods and that, although he attempted to involve himself in harvesting the crop, he was not able to do so for long.
33. Mrs Godber said that her husband’s migraines were very bad and that they debilitated him to a point where he was out of action for weeks at a time. She said it contributed to his not being able to help on the property. However, she did not accept that he was not substantially incapacitated by his back.
Dr Peter Van der Walt, Orthopaedic Surgeon
34. Dr Van der Walt provided reports dated 3 April 2002, 24 June 2002 and 19 May 2003. In his first report, Dr Van der Walt referred to the medication the applicant was taking when he saw him on 26 March 2002 as comprising aurorix for depression, testosterone patches, a drug to lower his blood calcium and another drug to lower his blood cholesterol. He recorded that the applicant had suffered from serious migraine attacks for a long time and that these could last for a period of five weeks.
35. In relation to his examination of the applicant, Dr Van der Walt noted that he did not walk with a limp and that he undressed easily and moved about comfortably on an even surface. He said that his measurements of lumbar movements revealed only minor restrictions although these were accompanied by lumbar discomfort. He said the applicant could stand on either leg with good balance, could walk on his toes and on his heels and that, when in the supine position, he did not present restricted flexion of his hips and was able to raise his heels from the couch with some increasing pain and had difficulty in touching his flexed knees with his hands. He also noted that straight leg raising in the supine position was limited at 55% on the left and 70% of the right although he was able to sit on the couch with his legs fully extended. He referred to tenderness over the lower spine with palpation, to deep tendon reflexes in his lower limbs as being normal and to his having altered sensation in the left lateral calf but with no obvious muscle wastage or muscle group weakness in the lower limbs. Dr Van der Walt then referred to the following results of investigations which had been conducted:
§ X-rays of the lumbar spine taken 2 April 1985 show a slight scoliosis convex to the right but no evidence of bony injury and with well preserved disc spaces. There is a fracture at the junction of the second and third segments of the sacrum, with anterior angulation of the distal part.
§ CT scan of lumbar spine taken 3 November 1993 did not have a radiological report. This was essentially a normal study.
§ MRI study of lumbar spine taken 19 January 1994 showed desiccation of the L5 S1 disc with minimal mid line protrusion with associated radial tear in the annulus. There is no neural compression.
36. Dr Van der Walt then expressed the following opinion:
“There is no doubt that Mr Godber suffered a fracture of his sacrum, with the injury on 9 February 1985. It is generally accepted that this type of fracture would heal and consolidate over a period of twelve weeks. Orthopaedic Surgeon Dr Dewey warned in his report that a sacral fracture always leaves residual discomfort for a prolonged period and it is therefore hard/dangerous to state that once the fracture is united the symptoms will disappear.
…
I would agree after my examination, that although Mr David Godber has radicular symptoms affecting his left lower leg, there are no objective signs of radiculitis.
At this late time after the occurrence of the accident, and with entrenched chronic low back pain, it is always very difficult to establish a definite anatomical abnormality, which is the cause of lumbar back pain. This is so in the vast majority of these cases. He does have a degenerate lumbo sacral disc on special investigations, but the correlation between this investigative finding, and his symptoms at present are difficult to interpret. His clinical situation best fits the diagnosis of chronic non specific low back pain as described by Gordon Waddell in his recent book ‘the Back Pain Revolution’.
My opinion is that his original injury of a fracture of the sacrum, did cause permanent impairment. This impairment has led to progressive increased disability in regard to his lower back.”
37. In cross-examination, Dr Van der Walt said that he had not treated the applicant and had only seen him on the one occasion. He agreed that a bulging disc could occur without having trauma, that it could be due solely to age and that it was a common phenomenon. He also said that the condition could be present without the necessity for symptoms to be experienced.
38. Dr Van der Walt was referred to the report, dated 2 September 2002, of Dr Bruce Martin and to Dr Martin’s comment that the fracture of the applicant’s sacrum had united without displacement, deformity or residual signs. He disagreed with this and said there had been displacement and deformity. He said there was significant anterior angulation and that a person with such a level of impairment would have problems with sitting, driving in a motor vehicle over rough ground, moving in confined spaces or standing in one position for a long time. He said that the applicant does have some nerve root problems although he could not find any objective evidence of radiculitis and that, if this was radiological, it would not have originated in the sacrum and he agreed that the fracture of the sacrum would not be causing any leg problems in the applicant. He said that he agreed with the opinion Dr Dewey had given that a sacral fracture will leave residual discomfort. He also agreed that the report of Dr Dewey indicated that the fracture of the sacrum had united and that the applicant’s residual problems arose from soft tissue injury that might have occurred at the time of the initial injury.
39. Dr Van der Walt referred to the physical examination of the applicant and to the means of testing to see whether a person is exaggerating symptoms and said that only in one of the five usual tests did the applicant indicate that this may be so and he said this probably meant he was genuine.
40. In his report of 19 May 2003, Dr Van der Walt stated that the applicant was not able to work in any employment for which he was qualified and he assessed the level of impairment as being 20% in accordance with table 9.5 of the Guide to the Assessment of the Degree of Permanent Impairment (the Approved Guide) on the basis that he can rise to a standing position and walk but has difficulties with grades, steps and distances. In his evidence, he agreed that he had not tested the applicant on grades or steps.
Dr H J P Khursandi, Orthopaedic Surgeon
41. Dr Khursandi saw the applicant on 2 June 2000 and, after a CT scan was conducted, on 11 October 2000. He completed reports on 11 August 2000 and 9 December 2000. In the first of his reports, he noted that the applicant was able to stand and walk on his heels and toes and that the spine showed diminished lumbar lordosis. He said that the applicant could reach his knees with forward flexion but that extension, lateral flexions and rotations were limited to 75% of expected normal range. He noted tenderness of the left sacrospinalis at the lumbosacral junction. He described straight leg raising to 60° on the left side and 70°.. Dr Khursandi described X-rays as revealing slight degeneration in the facet joints of the lumbar sacral junction with no other abnormalities and, in his second report, he said that, as a result of his seeing the CT scan, he was able to identify a significant bulge with degeneration and instability in the lumbo sacral disc. He said this would account for his back ache and left radicular pain. He said his opinion was that the incident that occurred to the applicant in 1985 would have caused the injury to his lumbo sacral disc and subsequent symptoms.
42. Dr Khursandi, in his report of 11 August 2000, set out a history of the applicant’s back problems as related to him by the applicant. This was that he stopped work with the Authority and took up lighter work with NPWS; then, about two years after the initial injury, he changed to a sedentary occupation because of persistent low back pain and lower left limb symptoms; then worked with his wife in a nursery for 5 years; and then moved to Queensland where he worked as a plant mechanic contractor.
43. Dr Khursandi said that he agreed with Dr Martin’s opinion that a disc bulge could be primarily age related, that it could arise out of trauma or from a combination of those two factors and that a person with the condition might have no symptoms. He said the existence of the bulge did not indicate whether it was caused by trauma or by age and that this would depend on the history given. He agreed that, if the history was not accurate, it could distort the opinion given.
44. Dr Khursandi was referred to a reference in his report to the applicant as being of muscular build and he agreed that this meant he would have been involved in a high level of physical activity. Dr Khursandi was asked whether the various measures of movement he had taken were effected by the L5 S1 joint and he said that they could be as they can affect the muscles acting on the spine as the muscles can limit movement because of pain rather than through loss of mechanical function. He said that he had not recorded whether the limitations on the applicant were mechanical or not but that he did not record reference to pain in his notes.
45. In relation to straight leg raising, he said he had not measured the applicant whilst in the sitting position because he questioned whether being able to sit up to 90° was the same form of test. He said this was because you could not be sure whether or not the knee bent to some extent when the applicant sat up. However, he also agreed that an experienced orthopaedic surgeon should be able to note this.
46. Dr Khursandi said that his opinions had been based on upon what he believed to be objective signs such as restricted movement and palpation. He considered that the disc bulge limited the applicant’s employment prospects in that he should not undertake activities involving bending, lifting, maintaining the spine in certain postures for long periods or riding on vehicles over uneven terrain.
Dr Bruce Martin, Orthopaedic Surgeon
47. Dr Martin saw the applicant on 20 August 2001 and completed reports on 23 August 2001 and 2 September 2002.
48. Dr Martin, in his first report and in his evidence, said that he had viewed the X-rays taken of the applicant’s spine in April 1985 and concluded that there was “a very slight anterior angulation, but otherwise no displacement”. He also said that he had seen an MRI study conducted in January 1994 and that the fracture was not visible because it had united. He said that there had been no displacement. Dr Martin said that any continuous pain over a period of 17 years since the incident in 1985 would not be related to the fracture because the fracture did not explain any of the symptoms. He acknowledged the existence of a bulge in the CT scan conducted in September 2000 but said the condition of the applicant’s spine was consistent with age and was not explained by the presence of the earlier fracture.
49. Dr Martin said that the applicant had told him that he had constant pain in his lower back and that he gets numbness in his left leg and pins and needles in his left foot and has had them every day since 1985. In his first report, Dr Martin stated that the applicant had not given the appearance of being in constant pain when providing his history but that there were times when he showed emotion with tears in his eyes. Dr Martin said he was noted to walk with a light limp favouring his left leg. He described limitations of movement because of pain complained of by the applicant. He said that the applicant was able to walk on the balls of his feet but when walking on his heels he had complained of lower back pain. Straight leg raising on the left was limited to 40° and on the right to 80° in each case with complaint of low left lumbar pain but without leg pain. However, he said that he was able to sit on the examination couch with his legs fully extended. He also described the applicant as showing signs on his hands of manual usage with ingrained dirt.
50. Dr Martin said that the applicant suffered from minor degenerative disc disease affecting the L5 S1 segment, that there was a united and asymptomatic fracture involving the third segment of the sacrum. He said that the fracture was an injury and that the degenerative condition was a disease. He also said that he did not suffer from any employment-related conditions and, in his first report, stated:
“…
The minor level of degenerative disc disease which affects Mr Godber’s lumbar spine is essentially a function of age, and can not be implicated with respect to M Godber’s rather high level of claimed disability and impaired function with regard to employment. I consider that there is no pathological basis to Mr Godber’s claim. His original injury was a fracture of the sacrum, and this has healed without sequelae. A number of inappropriate and inconsistent signs during clinical examination would suggest that Mr Godber’s credibility is suspect.
Your comments on the enclosed medical information
The enclosed medical information includes two reports from Dr Khursandi. I have perused these reports and I note that Dr Khursandi observed lumbar spinal extension, lateral flexion, and rotation, to be limited to 75% of expected normal range. No reason for this limitation is proffered. Furthermore, Dr Khursandi noted significant limitation to straight leg raising on the left, at 60°.. No basis for this limitation is provided. Dr Khursandi does not appear to explain his clinical observations. I note also that Dr Khursandi considers that the x-rays of 2nd April 1985 show slight degeneration in the facet joints at the lumbosacral junction, but he makes no reference to the fracture of the sacrum which can be seen on these films. Dr Khursandi would appear not to have had access to the MRI study which shows degenerative changes involving the L5 S1 disc. He did arrange for a CT scan, and his subsequent report makes reference to this investigation. Dr Khursandi considers the left-sided bulge from the lumbosacral disc to be significant, causing indentation of the thecal sac. My opinion is at variance with that of Dr Khursandi, in that I consider the bulge from the L5 S1 disc to be a manifestation of primary age-related degenerative process, and furthermore, insufficient to be causing nerve root compression. Also, given this condition of the lumbar spine, I would impose no restrictions upon Mr Godber’s activities. He should simply obey normal accepted practices with respect to the lifting of weights.”
51. In his second report, he confirmed his opinion that the fracture of the sacrum had united without displacement, deformity or residual sign and that a nil impairment was appropriate under the tables in the Approved Guide. In his evidence Dr Martin said that the limitations the applicant demonstrated on movement during his examination of him were inexplicable and could not be related to the back condition.
52. In cross-examination, Dr Martin expressed the opinion that the disc bulge in the applicant was age related and not caused by trauma and that trauma might be implicated in only 1% of cases. He said he did not agree with Dr Dewey’s opinion that the fracture of the sacrum could always lead to some residual symptoms. He said that he had observed the applicant sitting placidly in his chair without signs of pain although he conceded that he had not asked him whether or not he had taken medication before visiting him. He said, nevertheless, he had asked him about other forms of medication he was taking for example for his migraine. He said that the limitation the applicant voluntarily imposed on his ranges of movement could not be explained by any organic pathology. Those limitations in respect of straight leg raising were contradictory to the applicant’s capacity to sit with his legs outstretched on the couch. In each case, the reason for his limiting his movement had been because he actually said “I can’t go any further” and he asserted that this was because of pain. Dr Martin said that, despite that, when he had been asked to sit and stretch his legs, he had done so without complaint.
Dr M Sheldon
53. The X-ray report by Dr Sheldon was dated 3 April 1985 and related to X-rays conducted on the previous day. The report reads:
“Lumbar spine – on the lateral side of the sacrum there is a step consistent with the fracture of the third segment of the sacrum without significant displacements. This is not confirmed on the A.P. study however. The lumbar spine appears normal.”
Dr Peter Dewey, Orthopaedic Surgeon
54. Dr Dewey provided a report dated 11 July 1986 which included the following:
“Clinically he has a good range of hip movement and normal straight leg raising but does have just a trace of hyperalgesia over the S1-2 level on the left side.
It is my belief that a fracture of the sacrum due to a fall really represents only a minor part of the injury and invariably there is a lot of soft tissue injury associated with the fracture and usually some damage to one or other of the lumbar discs. I think this is why this injury always leaves residual discomfort for a prolonged period with a few odd soft neurological signs and why it is so hard dangerous to say that once the fracture is united, the symptoms will disappear. At this stage I am sure he could just continue along his present regime of remaining at work and being tolerant of his disability and I have tried to explain to him why it will be so slow to settle.”
Dr Ian Collins
55. Dr Collins prepared a report in relation to the applicant on 8 December 1994. He described the incident in which the applicant’s back was injured in 1985 and noted that, since then he had been seeing his local doctor and had some specialist consultations for the condition. He also referred to the applicant’s work history after leaving the Authority as comprising two years as a mechanic with the NPWS and then as a spare parts manager for about two and a half years. He described the applicant’s work at the time as that of driving a bobcat. In describing the applicant’s symptoms Dr Collins said:
“The pain is present all the time. In addition he gets pins and needles in the left leg extending down to the foot. He has numbness in the leg and pins and needles in the foot. He does not have pain in the right leg. There is one localised area in the lower back which is very tender to the touch.
He is able to bend his back and straighten it without problems. He is able to lift heavy things. It is worse by sitting and driving. It is not affected by coughing and sneezing. He is reasonable [sic] comfortable driving the bob-cat but when he was driving a truck it aggravated the back pain. Sometimes he can work for five hours on the bob-cat without any problems at all but on other days he might work on the bobcat for a couple of hours and then have great difficulty in getting out of it.”
56. In relation to diagnosis, Dr Collins said:
“The diagnosis is difficult. I think that the patient has probably damaged his coccyx in the initial fall but this has now recovered. He appears however to have strained his lumbar spine at the time of the accident and it is possible that he may have damaged disc L5-S1.
In my opinion he has chronic musculo ligamentous strain of the lumbar spine.
The precise site of his pain is unclear but it could be disc L5-S1 or a facet joint.”
57. Dr Collins expressed the opinion that the condition was a direct result of the 1985 accident.
Applicant’s Submissions
58. Mr O’Gorman submitted that, on or about 9 February 1985, the applicant had sustained a fracture of his sacrum which had arisen out of or in the course of his employment with the Authority. He submitted that the initial fracture of the sacrum had contributed in a material degree to the applicant’s current back condition of L5 S1 disc disease and that this had resulted in an incapacity for the applicant to engage in employment. He referred to the medical report of Dr Dewey and to the opinion he expressed there which he said was prophetic in that it indicated the outcome which had actually occurred as there had been residual damage to other parts of the applicant’s spine. He referred to the opinion of Dr Collins in 1994 that the applicant appeared to have strained his lumbar spine at the time of the accident. He also referred to the reports of Dr Khursandi as supporting the relationship between the present back condition and the applicant’s employment and to the report of Dr Van der Walt as reaching the same conclusion and he submitted that there was incapacity for employment as demonstrated in those respective reports.
59. He submitted that reliance should not be placed on the report of Dr Martin and he referred to his unwillingness to accept that the condition could be caused by injury and that this was inconsistent in the reports of Drs Dewey, Collins, Khursandi and Van der Walt.
60. Mr O’Gorman submitted that the contribution by employment factors to the applicant’s condition need not be great as long as it was more than de minimus and that this was the situation with the applicant. He submitted there may well have been some age relationship to the condition but that this did not mean there was no material contribution from the original injury.
61. Mr O’Gorman conceded that it wasn’t the case that the applicant was totally incapacitated for employment but that the respondent was liable to the extent that there was incapacity and that the matter should be remitted to the respondent for the purposes of conducting the calculation of his entitlements.
62. In relation to permanent impairment, Mr O’Gorman noted that the original injury had occurred prior to the commencement of the 1988 Act. He conceded that compensation for permanent impairment was not available under the earlier legislation but that, in the event that the condition the applicant now suffers from is quantitatively and qualitatively a new impairment, then the respondent was liable to compensate the applicant by lump sum under section 24 of the 1988 Act. He submitted that the level of impairment was at least 10% on the basis of the medical evidence provided by Dr Van der Walt.
Respondent’s Submissions
63. In relation to the applicant’s incapacity claim, Mr O’Donovan submitted that the applicant was an unreliable witness whose evidence should not be accepted. He referred to the inconsistencies that the applicant had demonstrated in the evidence concerning his attempts to get employment with the Authority, with the nature of this employment with the NPWS and the reasons given for ceasing to undertaking various forms of employment over the years. He also referred to the applicant’s evidence in respect of the use of the bobcat in the nursery business and the difference in the evidence between the applicant and his wife as to the use of the bobcat away from the nursery. Mr O’Donovan also noted the contradictions in the evidence in respect of the hours of work that the applicant said he was capable of and the report he had given to Dr Collins about that, including the length of time on the bobcat and the capacity to lift weights.
64. Mr O’Donovan referred to the inconsistency of the applicant’s description of symptoms whilst he was at the nursery and his willingness and ability to undertake a soft-drink delivery run involving the driving of a truck and the lifting of weights. He said that this inconsistency was also present in the applicant’s willingness to purchase a rural property with the intention of growing crops and building a house. Similarly, he referred to the many visits by the applicant to his general practitioner, Dr Sussans, including some forty visitations in the year 2000 but without his seeking any treatment for the back problem which was causing him such problems and only making reference to it on one occasion in respect of a compensation claim. In that regard, he submitted that, since 1994 when he saw Dr Collins, he had seen no other specialists or treating doctors, had obtained no medical opinions and had no physiotherapy or chiropractic treatment in all that time. He said this could not be explained by reference to an opinion given years earlier that the condition would take a long time to return to normal.
65. Mr O’Donovan also referred to the evidence of Dr Martin as indicating significant exaggeration by the applicant of his symptoms. He said this was supported by the material prepared in 1989 when he was described as being largely asymptomatic. He also submitted that the evidence of Dr Van der Walt should be rejected on the basis that the X-ray reports did not show displacement in the manner that he referred to. He also said that Dr Van der Walt had, consistently with Dr Martin, found some evidence of exaggeration in the straight leg raising tests.
66. In relation to Dr Khursandi’s evidence, he submitted that the examination techniques he had used did not involve any double testing to see whether or not there was consistency in the presentation of symptoms complained of by the applicant.
67. In relation to a lump sum payment for permanent impairment, Mr O’Donovan submitted that, as the condition occurred before the commencement of the 1988 Act, it was not compensable under the earlier legislation but he conceded that, if there had been a qualitative and quantitative change in the condition, this could potentially lead to a favourable determination under the 1988 Act. However, he submitted that this was not actually the case because there had been merely a gradual deterioration, if anything, and that it was the same injury. He said the applicant had been complaining of the problem since 1985 and that, therefore, the qualitative and quantitative change required had not occurred. In any event, Mr O’Donovan submitted that there was no evidence of permanent impairment as the only report which purported to do so was that of Dr Van der Walt who expressed the opinion that the applicant should be allocated 20% under Table 9.5 of the Approved Guide which requires a reference to difficulties with grade, steps and distances. He submitted that Dr Van der Walt had conceded that he had not provided any testing in relation to these parameters of movement.
68. In summary, Mr O’Donovan submitted that there was no permanent impairment as a result of a new condition developed after 1988, that the evidence of the applicant could not be relied upon to reveal any current incapacity and the medical evidence demonstrated there was no relationship between any such incapacity and the applicant’s employment.
Consideration
69. The applicant injured his back on 9 February 1985 and the condition of fractured sacrum was accepted by the respondent as a compensable condition. The applicant received compensation payments under the 1971 Act until 27 May 1985 when he returned to work with the Authority. The first issue for the Tribunal is whether or not the applicant continues to suffer from incapacity for employment as a result of that injury such that compensation may be paid to him in accordance with section 19 of the 1988 Act. It was this matter which was the subject of the reviewable decision made by the respondent on 21 December 2000. In determining that issue, it will be necessary to consider the initial back condition relating to the fractured sacrum and also the second back condition from which the applicant now suffers at the L5-S1 level to see whether or not it was materially contributed to by the fractured sacrum. The second back condition has been variously described as desiccation of the L5-S1 disc with minimal midline protrusion, lumbar sacral disc injury and degenerative disc disease and, for convenience, I adopt the diagnosis of L5-S1 disc disease.
70. The second issue for determination is whether the applicant suffers from permanent impairment as a result of his fractured sacrum and, again, it will be necessary to consider that in the context of that condition as well as his L5-S1 disc disease.
71. In relation to the initial injury of fractured sacrum, Dr Collins stated that this had now “recovered”; Dr Van der Walt agreed that the report of Dr Dewey indicated that the fracture of the sacrum had united and that the applicant’s residual problems arose from soft tissue injury that might have occurred at the time of the initial injury; Dr Khursandi did not refer to the status of the fractured sacrum but said that the incident that occurred to the applicant in 1985 would have caused the injury to his lumbo sacral disc and subsequent symptoms; and Dr Martin said that the fracture of the sacrum had healed without sequelae. On that evidence, I am satisfied that there is no residual incapacity in the applicant relating directly to the initial injury to the applicant’s sacrum. It then becomes necessary to consider whether that initial injury has contributed to the applicant’s L5-S1 disc disease.
72. Drs Van der Walt, Khursandi, Dewey and Collins were supportive of the existence of a relationship between the L5-S1 disc disease and the fractured sacrum. On the other hand, Dr Martin denied any such relationship. Dr Martin’s opinion was that the fracture of the sacrum had healed without sequelae. He referred to the 1985 X-rays and concluded that there was no displacement. He also referred to the MRI study completed in 1984 which showed there was no residual evidence of the fracture and his opinion was that any problems associated with the L5-S1 component of the applicant’s spine could not be related to the previous fracture of the sacrum. He concluded that the disc disease was degenerative or age-related in the applicant. Dr Martin noted significant inconsistencies in the way in which the applicant reacted during his medical examination of him, in particular, that he was able to sit with his legs fully extended even though, when lying down, he had been unable to raise either of his legs without pain. I found the evidence of Dr Martin to be highly persuasive despite his reluctance to accept that the applicant’s disc bulge could be related to trauma.
73. Whilst Dr Van der Walt was supportive of the link between the two back conditions, many of the observations he made about the applicant point to lack of reliance upon objective criteria. He noted that the applicant did not walk with a limp, undressed easily, moved comfortably, had only minor restriction of lumbar movements and also demonstrated inconsistency in his capacity to raise his legs in the supine position as compared with sitting with his legs extended on a couch. In his first report, he made reference to the difficulty he had in interpreting the symptoms of the applicant and he conceded that lumbar disc disease was a common condition frequently related to the aging process. In detailing the history given by the applicant in relation to his employment, Dr Van der Walt referred to the inability of the Authority to reemploy the applicant in 1988 because, “after a medical examination”, they were not able to guarantee that he would not be working in confined spaces. However, the medical report prepared a that time described the applicant as being asymptomatic except after a long drive and as being fit at that time although it was noted that his previous back injury would possibly make him more prone to further trouble.
74. Dr Van der Walt also relied on a comment in the report of Dr Collins that, in 1994, the applicant was “fit only for light work”.. Dr Collins was not provided with a history of employment which had the applicant, at that time, running a soft-drink delivery business. Neither was this information given to Dr Van der Walt. Also, Dr Collins was equivocal in his report as to the what back condition the applicant had when he saw him. He said that it was possible that he had damaged the L5-S1 disc and that he had chronic musculo ligamentous strain of the lumbar spine with the precise site of his pain being unclear.
75. Dr Van der Walt also referred to Dr Dewey’s opinion that a fracture of the sacrum due to a fall can represent only a minor part of the injury and to there usually being some damage to a lumbar disc. However, Dr Dewey did not indicate that this was invariably the case and he said that residual discomfort remains for a “prolonged period” and that it would be “slow to settle”. As I read Dr Dewey’s report, it indicates that a period can be reached where symptoms associated with the initial injury are no longer present.
76. Dr Khursandi, in his evidence, said that it was an important process in preparing the report to obtain an accurate history of the presentation of symptoms in a person and, in that regard, I have noted the work history he took from the applicant. Again, no reference was made to the soft-drink run and, in relation to the work with NPWS, it is described as being “lighter work”. That is not consistent with the employment reference that was given by Peter Ingram, the Chief Ranger with NPWS, and which was used by the applicant when he re-applied for work with the Authority. Mr Ingram said:
“David has proved to be thoroughly competent at his job and especially so in his maintenance and the fine tuning of the hydro-electricity generating equipment at Yarrangobilly Caves. His other duties have included maintenance and repairs to service vehicles in both light and heavy plant maintenance. His work in metal fabrication is of a high standard. During his time with us he has successfully supervised an apprentice fitter-mechanic. He has introduced a highly successful computer based system for expenditure of funds in his area.”
In his evidence, the applicant said he had not carried out those kinds of duties. However, because of general inconsistencies in the applicant’s evidence, as noted below, I accept the correctness of the description given by Mr Ingram.
77. The reference by Dr Khursandi to the need for the applicant to undertake lighter work following his injury is also not consistent with the medical report which was completed as a pre-condition to his re-employment with the Authority in 1988 where he was described as being asymptomatic except after a long drive and as being fit at that time. Dr Khursandi did not apply tests to determine the veracity of presentation of the applicant’s symptoms such as asking him to sit up on the couch to contrast his capacity to raise his legs. It is difficult to understand the explanation Dr Khursandi gave for this ie that one could not be sure whether or not the knee bent to some extent when the applicant sat up although he also agreed that an experienced orthopaedic surgeon would be able to note that. Dr Khursandi also noted that the applicant was of muscular build suggesting that he was involved in a higher degree of physical activity than he declared.
78. Dr Collins, in linking the condition of the L5-S1 disc with the initial accident, does so in terms that this was a “possibility” although, elsewhere in his report, he referred to it as being a direct result of the accident. He referred to the applicant as seeing his local doctor in relation to back pain since 1985. There is no evidence before the Tribunal in relation to that period concerning his local doctor or frequency of visits. However, the clinical notes of Dr Sussans, his general practitioner in Queensland from December 1995, while recording dozens of visits indicate that, not until 13 September 2000 was this in respect of a back problem. That entry reads:
“Back pain – having trouble with Work Cover”.
The explanation given by the applicant for this was that he had been told by Dr Dewey that it would take some years before his condition settled and that, therefore, he put up with the effects of the condition without complaint to a medical practitioner. The applicant saw Dr Dewey in 1986 and the explanation given by the applicant is not consistent with the reference by Dr Collins in 1994 to seeing his local doctor in the context of back pain since 1985. Moreover, the applicant began to see Dr Sussans some 9 years after he saw Dr Dewey who, he said, told him that the condition might last for 6 or 7 years. It was then a further 6 years before Dr Sussans recorded the reference to the applicant’s back. During those years, the clinical notes of Dr Sussans reveal that the applicant was treated for a range of conditions in addition to his shoulder problem, migraine, crush injury to the foot and hypogonadism as noted above. These included haemorrhoids, leg infection and laceration of the knee. Given the frequency of visits to Dr Sussans, the array of matters that the applicant raised for treatment and the time-frame which extended well beyond the period he described as being nominated by Dr Dewey, I do not accept the explanation that the applicant gave for not making complaint about his back. I also note that the applicant’s consultation with Dr Sussans in which he first made reference to a back condition was after the initial decision rejecting his claim was made.
79. In giving his evidence, I am satisfied that the applicant was generally unreliable. The evidence does not support the applicant’s contention that he has suffered from back symptoms since 1985. I do not accept that, when he made application for re-employment with the Authority in 1998, he did not believe he would be able to carry out the work associated with employment. The medical report which was responsible for his not securing a job referred to him as being fit at the time. The difficulty he faced was that he may have been more prone to injury. However, that is not to say he was not capable of doing the work or feeling capable of doing it at that time. The applicant also had difficulty in recalling matters which were adverse to him. He was unable to recall whether he had an injured shoulder whilst he was conducting his soft-drink run yet he had been to his local doctor in Queensland for shoulder treatment and complained of symptoms which had lasted for some six weeks. Moreover, the clinical notes of Dr Sussans show that he continued to have treatment for his shoulder for many months. Also, Mrs Godber did recall the fact that the applicant had a sore shoulder at that time. The applicant could not remember an injury to his right foot which occurred at the time he was building his house. On 29 February 2000, he was treated by Dr Sussans and gave a history of having dropped a large piece of metal weighing 5-6 kilograms on to his foot.
80. The applicant’s explanations of the nature of the duties he performed at the nursery at Tumut were also not consistent. His written statements suggested a minimal usage of the bobcat and, although he told Dr Collins that on some days he had have difficulty in shorter time frames, he also advised Dr Collins that he was able to work, on some days, for up to five hours on the bobcat at the nursery “without any problems at all”. The applicant’s evidence was also inconsistent in relation to the way that the bobcat was utilised. His statement would suggest the bobcat was used in the nursery exclusively and this was the evidence of Mrs Godber. However, the applicant also said there were times he used the bobcat to assist friends in activities such as the construction of driveways. Also, it is not probable that a person who was having such problems as the applicant alleged with his back in 1995 could make a conscious decision to move to a rural block to take up farming and to undertake the tasks of constructing a house as an owner-builder. Whilst the applicant’s evidence was that he was given assistance by friends in carrying out the building operations and that his wife was responsible, in large part, for the farming operations, the fact that they were willing to move there and to undertake those tasks is not consistent with being debilitated by a back problem especially in light of his many attendances at his local doctor with no reference to a back problem until 2000.
81. The applicant said that he ceased working with both the Authority and NWPS because of problems associated with his back. His letter of resignation from the Authority makes no reference to a back problem. It reads:
“Please accept this as my letter of resignation effective at the close of business (16.00 hrs) on the 27th day of August 1986. I would like to thank the SMHEA for the opportunity of working for them and I have enjoyed the last 3½ years.”
Also, as noted above, he purported to re-enter employment with the Authority and the reference from the Chief Ranger of NPWS does not indicate that the applicant had any physical problems whilst employed there.
82. In all of this, I prefer the opinion of Dr Martin to those of the other practitioners because of the nature of his observations of the applicant. The opinion of Dr Martin is consistent with the findings as revealed in the various X-rays, CT scans and MRI studies that have been taken of the applicant. I also consider it to be significant that Drs Khursandi and Collins did not have a complete history of the applicant’s work related activities and that Dr Van der Walt also observed signs which indicated inconsistency in the presentation of symptoms by the applicant. Also, both Dr Van der Walt and Dr Khursandi gave evidence that the condition which the applicant has could be degenerative or age-related.
83. I am satisfied that the applicant’s L5/S1 disc disease is not related to the fracture of his sacrum and also that the applicant’s current incapacity in respect of his back is unrelated to that original fracture. In order for compensation to be paid to the applicant under section 19 of the 1988 Act, the applicant must be incapacitated for work as a result of the injury which was related to employment and I am satisfied that this is not the case in this matter. In so finding, I have noted the evidence that, for many years after the initial injury, the applicant was able to engage in employment of both a sedentary nature as a spare parts manager in Tumut and also in physically active activities at NPWS, in his wife’s nursery and in carrying out his soft-drink deliveries.
84. In relation to the claim for permanent impairment, the only employment-related condition which may be taken into account is the applicant’s initial injury. I am satisfied that there was no new employment-related condition in the applicant which manifested itself after the commencement of the operation of the 1988 Act. That has particular significance in relation to a claim for permanent impairment for a back condition because, under the 1971 Act, no provision was made for permanent impairment in that case. It follows that there is no compensable permanent impairment under the 1971 Act and no new employment-related condition which might give rise to compensation being paid for permanent impairment under section 24 of the 1998 Act.
Decision
85. The Tribunal affirms the decisions under review.
I certify that the 85 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 17 & 18 September 2003
Date of Decision 18 November 2003
Counsel for the Applicant Mr O'Gorman
Solicitor for the Applicant Charlton, Muller & Madders
Counsel for the Respondent Mr O'Donovan
Solicitor for the Respondent Phillips Fox
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